Filed 9/25/13 P. v. Ritchie CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent,

v. GLENN ELLIOTT RITCHIE, Defendant and Appellant. F066156 (Super. Ct. No. 12CM1125)



### OPINION

THE COURT * APPEAL from a judgment of the Superi or Court of Kings County. Donna L. Tarter, Judge. James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Atto rney General, Louis M. Vasquez, Deputy Attorney General, for Plaintiff and Respondent. -ooOoo-

* Before Wiseman, Acting P. J., Gomes, J. and Peña, J.2 This is an appeal from judgment entered after appellant, Glenn Elliott Ritchie, pled guilty pursuant to a plea ag reement. Ritchie contends the trial court’s oral pronouncement with resp ect to a restitution fine (Pen. Code, § 1202.4) 1 conflicts with the minute order and abstract of judgment and th erefore requires correction. We conclude the record can be harmonized to resolve the conflict and affirm. FACTS AND PROCED URAL HISTORY In December 2011, Ritchie was arrested after .17 grams of methamphetamine were found on his person. He was char ged by information with possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)/c ount 1), a felony, and with being under the influence of a controlled su bstance (Health & Saf. Code, § 11550, subd. (a)/count 2), a misdemeanor. In addition, the information alleged in count 1 that Ritchie had two serious or violent pr ior convictions within the meaning of sections 667, subdivisions (b) through (i), and 1170.12, subdivisions (a) through (d). It was further alleged that Ritchie served a prior prison te rm within the meaning of section 667.5, subdivision (b). Ritchie was arraigned on the information, entered a plea of not guilty, and denied the enhancement allegations. On September 14, 2012, at sentencing, th e trial court discussed a plea agreement with counsel in chambers. The trial court orally pronounced its indicated sentence and advised Ritchie of the conseque nces of entering a plea. In doing so, the trial court told Ritchie it was going to impose a restitution fine and asked the probation officer the amount. The following exchange occurred: “PROBATION OFFICER []: “$1,440. Th at’s calculated at six years, your Honor. “THE COURT: All right. The Court is going to impose a restitution fine of $1,440.”

1 All further statutory references are to th e Penal Code unless otherwise indicated.3 Following the trial court’s oral pronounce ment of its indicated sentence, Ritchie withdrew his not guilty plea and entered a pl ea of guilty to count 1 and admitted the two serious or violent prior convicti on allegations. In return, the Pe ople agreed to a stipulated term of six years and dismissed count 2. The trial court accepted Ritchie’s plea and admission and sentenced him to six years on count 1 and imposed “a $140 state res titution fine pursuant to 1202.4 ....” The minute order for the September 14, 2012, hearing and the abstract of judgment reflect a restitution fine of $1,440 pursuant to sec tion 1202.4, subdivision (b). DISCUSSION Generally, when there is a conflict betw een the oral pronouncement of judgment and a minute order, the former controls and th e latter is presumed to be the result of clerical error. ( People v. Mitchell (2001) 26 Cal.4th 181, 185 .) The oral pronouncement also controls over the abstract of judgment if the two conflict. ( People v. Delgado (2008) 43 Cal.4th 1059, 1070.) Neverthe less, the abstract of judgment, “[w]hen prepared by the court clerk, at or near the time of judgment, as part of his or her official duty,” confers “a presumption of regularity and reliability.” ( Id .) It is also the “‘general rule’” that “‘a record that is in conflict will be harmonized if possible. [Citation.] If it cannot be ha rmonized, whether one portion of the record should prevail as against cont rary statements in another portion of the record will depend on the circumstances of each particular case.’ [Citation.]” ( People v. Lawrence (2009) 46 Cal.4th 186, 194, fn. 4.) In this case, the conflict is between the trial court’s indicated oral pronouncement stating it would impose a restitution fine of $1,440, and its subsequent oral pronouncement actually imposing a restitution fine of $140. The question then is which oral pronouncement controls. We conclude this record can be harmonize d to resolve the conflict. We begin with the trial court’s indicated restitution fine of $1,440. The probation officer stated that it4 was $1,440, calculated based on the number of years Ritchie was sentenced to serve. The trial court adopted that amount on the record. The clerk’s transcript and the abstract of judgment reflect the same amount and cite sec tion 1202.4, subdivision (b) as the statutory authority. Section 1202.4, subdivision (b ) provides in relevant part: “(b) In every case where a person is convicted of a crime, the court shall impose a separate and additional restitu tion fine, unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record. (1) The restitution fine shall be set at the discretion of the court and commensurate with the seriousness of the offense. If the person is convicted of a felony, the fi ne shall not be less than two hundred forty dollars ($240) starti ng on January 1, 2012, .... ¶ (2) In setting a felony restitution fi ne, the court may determine the amount of the fine as the produc t of the minimum fine pursuant to paragraph (1) multiplied by the number of years of imprisonment the defendant is orde red to serve, multiplied by the number of felony counts of which th e defendant is convicted.” In this case, the trial court sentenced Ritc hie to six years for felony possession of methamphetamine and expressly imposed the re stitution fine according to section 1202.4, subdivision (b). Because sect ion 1202.4, subdivision (b)(1) mandates the “fine shall not be less than two hundred forty dollars ($24 0),” and since we presume the trial court “‘knows and applies the correct statutory ... law’” ( People v. Thomas (2011) 52 Cal.4th 336, 361), we presume that the trial court in tended to set Ritchie’s restitution fine at $1,440, and that it misspoke in expressi ng it as $140 or the reporter incorrectly
transcribed it. The clerk’s minute order and the abstract of judgment prepared close in time to the court’s oral pronouncemen t further support our conclusion. The People ask this court to impose a revocation restitution fine pursuant to section 1202.45, subdivision (a) in the sa me amount as was imposed pursuant to subdivision (b) of section 1202.4 in the event this court rema nds for clarification. Since we affirm the judgment, we decline to do so.5 DISPOSITION The judgment is affirmed.